Joppa Mattress Company v. Arkansas Valley Cotton Oil Company

• Decision Date: 01 January 1912
• Citation: 142 S.W. 831,101 Ark. 548
• Parties: JOPPA MATTRESS COMPANY v. ARKANSAS VALLEY COTTON OIL COMPANY
• Court: Arkansas Supreme Court

142 S.W. 831

101 Ark. 548

JOPPA MATTRESS COMPANY v. ARKANSAS VALLEY COTTON OIL COMPANY

Supreme Court of Arkansas

January 1, 1912

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham Judge; reversed.

STATEMENT BY THE COURT.

This was a suit for damages growing out of an alleged breach of a contract for the sale of fifty bales of cotton linters. It was alleged that plaintiff on the 4th day of October, 1909 purchased of the defendant fifty bales of lint cotton, known as linters, of five hundred pounds per bale, at the price of three cents per pound. That defendant, in violation of its contract, after demand of plaintiff for delivery, refused, on the 23d day of December, 1909, to deliver said linters, and that at said date of such refusal they were of the market value of four and a half cents per pound. Prayer for judgment for the difference in the sale and market price in the sum of three hundred and seventy-five dollars.

The defendants answered, denying all the material allegations of the complaint, and pleaded the statute of frauds. And further that the plaintiff delayed an unreasonable time, after it was notified of defendant's readiness to deliver the cotton to give shipping instructions and receive same, and it, on that account, rescinded the contract, as it had the right to do; and by way of counterclaim, asked $ 25 damages for insurance, and $ 12 additional for storage and $ 75 for damage to the linters on account of exposure to the weather during such delay.

The evidence shows the sale of fifty bales of linters at three cents per pound by the defendant company, which acknowledged on October 8, 1909, receipt of confirmation of the order therefor. Afterwards the following correspondence was had The defendant company, on October 16, wrote to the plaintiff "We express you today samples of the linters sold you October 4, 1909, and would be glad to ship them at once."

To which it replied on November 19, as follows: "Answering your favor of the 16th, beg to say that samples have not been received as yet. We were in hopes that we could have the fifty bales shipped to us by boat, and would thank you to hold these linters for a little while until the river rises sufficiently for a boat to bring the cotton down. Let us know how long you can hold these; and if the river does not rise in time, we will have them sent by rail. Will you have more linters to offer?"

Nothing further was said by either party until December 20, when plaintiff wrote: "We are now ready to have you ship the fifty bales of linters to us, and we want them to come by boat. We are this day writing to A. R. Bragg, manager of the packet company, to bring them down on the next trip of the boat. Get the bill of lading from the boat and draw on us, three days' sight."

Plaintiff company at the same time wrote to the manager of the boat line of the Arkansas River to get the bales of linters from defendant and bring them down.

On December 23d, the defendant company wrote plaintiff, as follows: "We have yours of the 20th inst., relative to the shipment of linters. You did not expect us to hold these linters all season, did you? We sold you this stuff in October, and expected to ship it out before the close of the season. We wrote you and expressed samples, and had very little satisfaction from you. About all we had was that you would ship on first boat. Several boats have landed at our wharf, and, with no instructions, we took it for granted that you did not care to handle the linters, therefore we sold to parties giving prompt instructions."

To this letter plaintiff replied, expressing surprise at the sale of the linters, denying defendant's right to make it, and stating they would expect them to fill the order. Also stated that they had had no reply to their letter of November 19, requesting that the linters be held, or any notice that they would not be, and demanded the difference in price between the linters sold and the market of that day.

On January 5, plaintiff again wrote defendant, requesting an answer to their letter of the 24th, and advice as to whether it would fill the order for the linters, to which letter defendant replied that it had sold the linters in September, 1909, had confirmation of the sale on October 4, and replied thereto on the 8th, and, "We carried this as long as we thought it business to do so, and on November 16 we wrote you, asking for instructions. We have your letter dated November 19, 1909, asking us to hold these linters for a short time until you could give us instructions by boat. We had several boats and no instructions, and on December 23 we wrote you cancelling contract. We are not in the speculating business, and do not carry stocks for others without charge."

The manager of the defendant testified that the transaction was shown by the correspondence; that the linters were to be shipped as soon as made; that the samples were sent as indicated, and shipping instructions requested. That the linters would not stand the weather, and that they were turned and sunned, and that they had no place where they could store and keep them. That, on that account, they tried to sell a month ahead and move their linters as manufactured. That they also had to be insured, which was expensive. That plaintiff's letter, relative to shipping by boat, was not answered, and was satisfactory to the company. That they left the linters alone, and had one boat in a week or two afterwards, and wrote them about the boats, and had no instructions. He claimed that they received a letter in reply that unless a boat could be had in ten days shipping instructions by rail would be given. No notice was given that the linters would be held nor was any notice given that they would be sold; the first intimation the plaintiff company had of the sale being from the defendant company's letter of December 23, in reply to its demand on the 20th for the shipment.

The assistant manager testified also to the making of the contract and the practice of the mill company to ship out the linters in accordance with their sales as early as possible to get them out of the way, and that it was necessary to sell ahead in order to save the expense of insuring and turning the linters over and taking care of them. That, after the receipt of the letter of the 19th requesting that the linters be held, "we held it and insured it, and the Joppa Mattress people kept waiting, and we knew it would damage, and we did not want a damage suit on our hands, and we did not think much they wanted it, and we sold it."

The court instructed the jury, declining to give any of the instructions requested by plaintiff, and giving, over its objections, instructions numbered 1 and 3, and one on its own motion, as follows:

"If you find for the plaintiff, and you find from the evidence that the defendant was damaged by having to keep the linters from the time they were to have been delivered and paid for to the time of making demand on the defendant for their shipment, you will deduct such sums as the evidence shows defendant may have been damaged by reason of such delay."

"You are instructed that, if you believe from the evidence that the defendant contracted to sell a certain quantity of linters to plaintiff during the season of 1909-1910 at a specified price, and, when called upon to deliver said linters during the season of 1910, defendant refused to do so, your verdict will be for the plaintiff, unless you find that plaintiff delayed giving shipping instructions for an unreasonable length of time after receiving notice from defendant that linters were ready to be shipped, and you will assess the damages at a sum to represent the difference between the contract price and the market price of linters at Dardanelle at the time of such refusal, less...